"Possession is 9/10 of the Law" a Common Jailhouse Misconception
Updated: May 28, 2021
I have often sat across the glass from a client and had a discussion with him or her about a case, only to hear that dreaded phrase, "They didn't find nothing on me ... and possession is nine-tenths of the law." This is wrong on so many levels, but it is still believed by so many people accused of possessory crimes.
So what is possession? And what isn't it? And where does this saying come from anyway?
First, most agree that this saying has its origins in an old Scottish proverb, “possession is eleven points in the law, and they say they are but twelve.” In the United States, courts have referred to the "nine-tenths standard" in property disputes to essentially hold that, if a person possesses property, there is a presumption that the person owns it. In a criminal law context, however, "possession" is a little more complex.
What is possession?
In North Carolina, there are two types of possession: actual and constructive. "Actual" possession is what most people think of when they hear the word "possess." If a person has cocaine in his or her hand, knows it is cocaine, and intends to use it, he or she is in actual possession of cocaine. Simple enough. But that is just one type of actual possession. A person is also in actual possession of cocaine if he or she is a passenger in a car, and the driver hands him or her a bag of cocaine to throw out the window during a traffic stop. Even though the cocaine may belong to the driver in the most basic sense of ownership, the passenger still possesses the cocaine if he or she knows what it is, takes it from the driver, and throws it out the window. The possessor need not intend to ingest the cocaine, just to control its disposition or use. Also, the passenger may have just possessed the cocaine for one second, but he or she still possessed it under the law.
The other type of possession under North Carolina law is constructive possession. A person constructively possesses something if it is in a place to which he or she has access (alone or with others), he or she knows it is there, and he or she intends to use or dispose of it. One example is, if a person is driving a car, heroin is in the console, the person knows it is there, and intends to do something with it, then that driver possesses the heroin even though it is not actually in his or her pocket or hand. He or she still "constructively possesses" it all the same. This is also true of all passengers in the car if they can access the heroin, know it is there, and intend to do something with it. Under constructive possession, more than one person can possess the same contraband. The same analogy can be made of co-occupants in a house or apartment.
Lastly, the authorities do not have to "find something on" someone to charge, or convict, that person under either theory of possession. Circumstantial evidence can be used to show possession. For example, if a person is seen running through a field, police locate a gun in that field, and the gun has that person's DNA or fingerprints on it, those facts are pretty strong circumstantial evidence that the person possessed the gun.
What is not possession?
Now that we have discussed what the meaning of possession under North Carolina criminal law is, let's discuss what it is not. A person is not in possession of something just because he or she is near it. A person is also not in possession of something just because he or she is aware of its identity and location. Law enforcement officers often charge people under those facts, especially when several people are in a location with contraband and no one admits to possessing it. However, those facts alone, in North Carolina, are not enough to prove possession. The person must still have the intent and ability to control the contraband's disposition or use to possess it under the law.
What is the point?
While "possession is nine-tenths of the law" may have some validity as a Scottish proverb, it has little validity as it has been used over the years in criminal law contexts. The legal meaning of possession covers a lot more that's what's literally in a person's hand, and it can be proven with many types of evidence. Still, all the aspects of either actual or constructive possession must be proven for a person to be convicted of possessing contraband. The main takeaway I hope all people who fall back on the language of this Scottish proverb learn is: choose your friends, hangouts, and habits wisely. If you do that, hopefully you'll never have to parse the meaning of possession under any criminal law.